UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39676 (rem)

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UNITED STATES

Appellee

v.

D’Andre M. JOHNSON

Second Lieutenant (O-1), U.S. Air Force, Appellant

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On Remand from 

the United States Court of Appeals for the Armed Forces

Decided 19 July 2022

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Military Judge: W. Shane Cohen.

Approved Sentence: Dismissal, confinement for 10 years, and forfeiture 

of all pay and allowances. Sentence adjudged 1 December 2018 by GCM 

convened at Moody Air Force Base, Georgia.

For Appellant: Major Sara J. Hickmon, USAF; Mark C. Bruegger, Esquire; Catherine M. Cherkasky, Esquire.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant 

Colonel Matthew J. Neil, USAF; Major Anne M. Delmare, USAF; Major 

John P. Patera, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

Judge RICHARDSON delivered the opinion of the court, in which Senior 

Judge POSCH joined. Judge MEGINLEY filed a separate opinion, dissenting in part and in the result.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

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United States v. Johnson, No. ACM 39676 (rem)

2

RICHARDSON, Judge:

Contrary to his pleas, a general court-martial composed of officer members

convicted Appellant of one specification of sexual assault of AM, by penetrating 

AM’s vulva with his penis while AM was incapable of consenting to the sexual 

act due to impairment by alcohol, and one specification of sexual assault of MP, 

by penetrating her vulva with his finger by causing MP bodily harm, both in 

violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920.

1 The panel sentenced Appellant to a dismissal, confinement for ten 

years, and forfeiture of all pay and allowances. The military judge credited Appellant with 138 days against his sentence for time Appellant spent in pretrial 

confinement. The convening authority approved the sentence as adjudged.

I. BACKGROUND

On initial appeal, Appellant contended, inter alia, that he suffered cruel 

and unusual punishment in violation of the Eighth Amendment to the United 

States Constitution2 and Article 55, UCMJ, 10 U.S.C. § 855, due to inhumane 

and dangerous conditions and mistreatment while in post-trial confinement. 

In a related claim, Appellant contended that the conditions of his post-trial 

confinement render his sentence inappropriately severe. Considered together, 

the claims sought relief under this court’s authority to affirm “the sentence or 

such part or amount of the sentence” as we “find[ ] correct in law and fact and 

determine[ ], on the basis of the entire record, should be approved.” Article 

66(c), UCMJ, 10 U.S.C. § 866(c).

In United States v. Johnson, No. ACM 39676, 2020 CCA LEXIS 364 (A.F.

Ct. Crim. App. 16 Oct. 2020) (unpub. op.), rev’d and remanded in part, 81 M.J. 

451 (C.A.A.F. 2021) (mem.), we found Appellant failed to meet his burden that 

he was subjected to cruel or unusual punishment, and we concluded that he 

was not entitled to relief under the Eighth Amendment or Article 55, UCMJ.

In particular, we found Appellant did not demonstrate deliberate indifference 

of prison officials, exhaustion of the prisoner-grievance system, or that he petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938. Johnson, unpub. 

op. at *54; see also United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006).

We “also considered whether Appellant’s assertions [regarding his post-trial 

confinement conditions] warrant sentence relief under our Article 66(c), 

UCMJ, authority,” without considering Appellant’s extra-record matters, and 

found Appellant’s sentence was appropriate. Id., unpub. op. at *55, *56 n.12. 

 

1 All references in this opinion to the UCMJ, Rules for Courts-Martial, and Military 

Rules of Evidence are to the Manual for Courts-Martial, United States (2016 ed.).

2 U.S. CONST. amend. VIII.
United States v. Johnson, No. ACM 39676 (rem)

3

Finding no errors that materially prejudiced Appellant, we affirmed the findings and sentence.

Appellant petitioned the United States Court of Appeals for the Armed 

Forces (CAAF) to review his case, and the CAAF granted that petition on the 

following issue: 

During clemency, Appellant detailed the deplorable conditions 

of his post-trial confinement. On appeal, he provided supplementary information on these conditions to support his claims of 

cruel and unusual punishment and to seek sentence relief. Did 

the lower court err when it decided it could not consider this supplementary evidence for its sentence appropriateness review?[

3

]

United States v. Johnson, 81 M.J. 229, 229–30 (C.A.A.F. 2021). 

The CAAF summarily disposed of the issue, affirming our decision as to 

findings but reversing it as to sentence. Johnson, 81 M.J. at 452. The CAAF

“note[d] that in its sentence appropriateness review, the United States Air 

Force Court of Criminal Appeals erred in failing to consider additional information about Appellant’s post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority.” Id. The CAAF returned Appellant’s record of trial “to the Judge Advocate 

General of the Air Force for further review under Article 66, Uniform Code of 

Military Justice, 10 U.S.C. § 866.” Id. This is that review.

After his case was again docketed with this court, Appellant identified 

three assignments of error: (1) the conditions of his post-trial confinement render his sentence inappropriately severe, warranting sentence appropriateness 

relief; (2) he was entitled to a unanimous verdict at trial; and (3) the conditions 

of his post-trial confinement represented cruel and unusual punishment, warranting sentence relief.4 Having considered the additional information about

Appellant’s post-trial confinement conditions, we conclude that relief is not 

warranted under the first assignment of error. 

 

3 The CAAF granted an additional issue unrelated to this remand.

4 Appellant personally raised issues (2) and (3) pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982). Appellant raised issue (2) for the first time after his case 

was remanded for further review; he did not raise it at trial or earlier on appeal to this 

court. We addressed issue (3) in our previous opinion, and find no cause to alter our 

conclusions. We find issues (2) and (3) do not warrant further discussion or relief. See

United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
United States v. Johnson, No. ACM 39676 (rem)

4

II. DISCUSSION

In Johnson, this court noted that “[a]lthough we have great discretion to 

determine whether a sentence is appropriate, we have no authority to grant 

mercy.” Unpub. op. at *56 (citing United States v. Nerad, 69 M.J. 138, 146

(C.A.A.F. 2010)). We added the following footnote:

Although we exercise our authority to consider outside-the-record matters to determine if Appellant’s sentence is correct in law 

under Article 55, UCMJ, and the Eighth Amendment, see United 

States v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001), we are precluded from considering additional information about those conditions that Appellant presents in his post-trial statement of 

facts to determine if his sentence is appropriate and “should be 

approved” as part of our Article 66(c), UCMJ, review. See United 

States v. Jessie, 79 M.J 437, 441 (C.A.A.F. 2020).

Johnson, unpub. op. at *56 n.12. The CAAF found we erred by not considering 

this additional information in our sentence-appropriateness review because

“Appellant had raised the matter in his clemency response to the convening 

authority.” Johnson, 81 M.J. at 452; see also United States v. Willman, 81 M.J. 

355, 359–60 (C.A.A.F. 2021) (finding that outside-the-record declarations 

about post-trial confinement conditions may be considered in an Article 66(c), 

UCMJ, sentence appropriateness review when an appellant raised the issue to 

the convening authority during clemency).

We consider all of Appellant’s assertions regarding post-trial confinement 

conditions and whether relief is warranted under Article 66(c), UCMJ, for sentence appropriateness. Having reviewed all matters presented on this issue, 

including all post-trial declarations submitted to this court, we find Appellant’s 

sentence was not rendered inappropriately severe by the conditions of his posttrial confinement. Relief is not warranted; the sentence is appropriate and 

should be approved.

III. CONCLUSION

In our previous decision, we affirmed the findings of guilty; the CAAF affirmed our decision as to findings. On remand, the sentence is correct in law 

and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the sentence is AFFIRMED.

MEGINLEY, Judge (dissenting in part and in the result):
United States v. Johnson, No. ACM 39676 (rem)

5

I concur with the majority’s opinion in footnote four, supra, with respect to 

Appellant’s second assignment of error. 

As this opinion notes, the Court of Appeals for the Armed Forces (CAAF)

opined that in our sentence appropriateness review, this court erred in “failing 

to consider additional information about Appellant’s post-trial confinement 

conditions even though Appellant had raised the matter in his clemency response to the convening authority.” United States v. Johnson, 81 M.J. 451, 452

(C.A.A.F. 2021) (mem.). The CAAF returned this case to our court to consider 

whether Appellant’s assertions regarding post-trial confinement conditions 

warrant relief under our Article 66(c), UCMJ, 10 U.S.C. § 866(c), review for 

sentence appropriateness. Id. In light of this directive, and now taking into 

consideration the additional information Appellant provided about his posttrial confinement conditions after he submitted clemency, along with recent 

developments discussed in more detail below, I find it is worth reevaluating 

Appellant’s third assignment of error: that the conditions of his post-trial confinement represented cruel and unusual punishment. 

Since my delivering the opinion of the court in United States v. Johnson, 

No. ACM 39676, 2020 CCA LEXIS 364 (A.F. Ct. Crim. App. 16 Oct. 2020) (unpub. op.), rev’d and remanded in part, 81 M.J. 451 (C.A.A.F. 2021) (mem.), 

three opinions have been released by this court that have led to me to question

whether Appellant suffered cruel and unusual punishment, and subsequently, 

whether he is entitled to any sentence relief. See United States v. Pullings, No. 

ACM 39948, 2021 CCA LEXIS 648 (A.F. Ct. Crim. App. 30 Nov. 2021) (unpub. 

op.), rev. denied, No. 22-0123, 2022 CAAF LEXIS 165 (C.A.A.F. 2 Mar. 2022), 

then rev. granted, No. 22-0123, 2022 CAAF LEXIS 395 (C.A.A.F. 26 May 2022); 

United States v. Merritt, No. ACM 39754, 2021 CCA LEXIS 61 (A.F. Ct. Crim. 

App. 11 Feb. 2021) (unpub. op.), rev. denied, 2021 CAAF LEXIS 731 (C.A.A.F. 

9 Aug. 2021); United States v. Citsay, No. ACM 39712, 2020 CCA LEXIS 453 

(A.F. Ct. Crim. App. 18 Dec. 2020) (unpub. op.), rev. denied, 2021 CAAF LEXIS

331 (C.A.A.F. 13 Apr. 2021).

In Johnson, we addressed the various issues Appellant raised regarding 

the conditions he faced at Lowndes County Jail (LCJ); along with the response 

provided by Captain JC, the jail administrator at the LCJ; and Master Sergeant GB, Appellant’s first sergeant. Unpub. op. at *54–55. In that same opinion, this court also noted a then-recent case involving LCJ, United States v. 

O’Bryan, No. ACM 39602, 2020 CCA LEXIS 211 (A.F. Ct. Crim. App. 24 Jun. 

2020) (unpub. op.), rev. denied, No. 20-0296, 2020 CAAF LEXIS 438 (C.A.A.F. 

11 Aug. 2020), a case where that appellant made similar claims against the 

facility. Nonetheless, because Appellant failed “to raise his issues to prison officials or his command” under Article 138, UCMJ, 10 U.S.C. § 938, we found 
United States v. Johnson, No. ACM 39676 (rem)

6

he had failed to show “deliberate indifference by the [LCJ].” Johnson, unpub. 

op. at *54–55. 

A few months after Johnson, I penned a dissent in Merritt that questioned 

the reasonableness of dismissing allegations of cruel or unusual conditions of 

post-trial confinement simply because an appellant failed to file an Article 138, 

UCMJ, complaint with his or her leadership, a factor to be considered under 

United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006). See Merritt, unpub. 

op. at *26–43 (Meginley, J., dissenting in part and in the result). Specifically, 

I wrote that 

[u]nder the current state of the law, even if a confinee is able to 

prove the first factor under Lovett [that an appellant must show 

an objectively, sufficiently serious act or omission resulting in 

the denial of necessities], it is a rare case where a confinee will 

be able to prove the state of mind of prisons officials and deliberate indifference.

Id. at *31.

Following Johnson, this court has written on two additional cases involving 

LCJ: Pullings and Citsay. In both cases, this court chose not to grant relief to 

those appellants. Yet, earlier this year, our superior court granted review of 

our decision in Pullings on the following issues:

I. In addition to prison officials, can the decisions of military personnel satisfy the “Deliberate Indifference” aspect of cruel and 

unusual punishment test when they repeatedly send military inmates to a local civilian confinement center with a history of inhumane living conditions for inmates? 

II. Additionally or alternatively, did Appellant suffer cruel and 

unusual punishment for 247 days and nights at Lowndes County 

Jail? 

Pullings, 2022 CAAF LEXIS at 395.

I now raise the same questions in Appellant’s case as posed by the CAAF 

above. I cannot determine whether Appellant is entitled to relief under the 

Eighth Amendment to the United States Constitution1 or Article 55, UCMJ, 

10 U.S.C. § 855, or if his sentence is appropriate under Article 66(c), UCMJ, 

without knowing the answer to these questions. I now believe a post-trial evidentiary hearing is required to resolve any factual disputes between Appellant’s clemency and post-clemency matters and the declarations submitted by 

the Government, particularly Captain JC’s affidavit. See United States v. Ginn, 

 

1 U.S. CONST. amend. VIII.
United States v. Johnson, No. ACM 39676 (rem)

7

47 M.J. 236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 

(C.M.A. 1967). To the degree that such a hearing is found to be impractical, as 

it has been three and half years since Appellant’s trial, I would grant Appellant

relief under Article 66(c), UCMJ.

2

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

2 As for whether Air Force officials have exhibited “deliberate indifference” on civilian 

confinement matters arising from Moody Air Force Base (AFB) cases, it is worth noting 

that this court has previously addressed other cases of confinement conditions of Airmen from Moody AFB at local confinement facilities and/or claims of cruel and unusual

punishment. See, e.g., United States v. Burke, No. ACM S32137, 2014 CCA LEXIS 834 

(A.F. Ct. Crim. App. 3 Nov. 2014) (unpub. op.); United States v. Luckado, No. ACM 

37962, 2013 CCA LEXIS 741 (A.F. Ct. Crim. App. 1 Aug. 2013) (unpub. op); United 

States v. Wilson, No. ACM 37897, 2012 CCA LEXIS 385 (A.F. Ct. Crim. App. 12 Oct.

2012) (per curiam) (unpub. op.); United States v. Simmons, No. ACM 37967, 2012 CCA 

LEXIS 230 (A.F. Ct. Crim. App. 27 Jun. 2012) (unpub. op.); United States v. Branch, 

No. ACM S31691, 2010 CCA LEXIS 403 (A.F. Ct. Crim. App. 13 Dec. 2010) (per curiam) 

(unpub. op.); United States v. Lucas, No. ACM 37363, 2009 CCA LEXIS 479 (A.F. Ct. 

Crim. App. 28 Dec. 2009) (unpub. op.); United States v. Melson, No. ACM 36523, 2007

CCA LEXIS 372 (A.F. Ct. Crim. App. 14 Sep. 2007) (per curiam) (unpub. op.). Most of 

these cases also involve the nearby Cook County Jail, Cook County, Georgia. No relief 

was granted to any of these appellants for cruel and unusual punishment, although

the appellant in Melson was granted relief for his illegal pretrial punishment.